September 2019 Bar bulletin
By Andrew Prazuch
In order to protect the important access to justice and diversity programming of the Washington State Bar Association from legislative and constitutional challenges, the King County Bar Association’s Board of Trustees decided on July 17 to recommend that the state bar be restructured into at least two distinct entities.
The Washington Supreme Court announced last September that it was undertaking “a comprehensive review of the structure” of the WSBA in light of pending national lawsuits and recent case law. The Court noted the review would include the “governance” of the WSBA. It appointed an 11-member work group chaired by the chief justice, which began meeting on March 28 and held eight work sessions through July 17.
During the course of its discussions, the work group heard from experts about various models and pending cases. By its June 26 meeting, it decided by a 10-1 vote (with the chair abstaining) to recommend that WSBA remain a single entity and a mandatory bar. The group spent its remaining two meetings fine-tuning that position with a recommendation that the Court reconsider a 2014 Governance Task Force Report and reconsider the process for the “Keller” deduction that allows members to opt-out of paying for certain bar activities.
At its April 17 and June 19 meetings, KCBA’s Board of Trustees received briefings on the work group’s deliberations during the spring, with trustees expressing a consensus that bifurcation of the mandatory and voluntary functions of the WSBA might be the best option for the Court to adopt. Then at the Board’s July 17 retreat (coincidentally when the work group held its final meeting), the KCBA trustees directed that a letter be submitted expressing KCBA’s concerns and providing comments. KCBA’s intent was to offer comments in the true spirit of an amicus curiae that cares as deeply as the Court does about the practice of law and the administration of justice.
In its August 27 letter to the Court, KCBA noted that:
[O]ur analysis of recent events both in Washington State and across the country is that momentum will continue to grow nationwide to bifurcate mandatory bar associations. Whether rooted over issues of compelled speech, antitrust and unfair trade practices, or political considerations, the result is the same. The structure of mandatory bar associations is under scrutiny from both federal courts and state legislatures (including our own elected officials in Olympia). Most recently we have witnessed our colleagues in California, the largest state bar in the nation, endure a crisis in leadership and vision for the profession before the solution of a bifurcated bar structure was adopted in 2018. The pending State Bar Association of North Dakota appeal most likely will result in a forced decision of these questions for remaining mandatory bar associations by the U.S. Supreme Court.
KCBA encouraged the Court to adopt three principles to better protect the legal community’s commitment to access to justice and diversity. First, KCBA recommends that regulatory functions, including licensure and discipline, should be housed not in a bar association, but within the judicial branch. License fees would pay for the cost of administering these functions, with supervision perhaps by a court-appointed advisory board.
Second, KCBA suggests that the work of promoting access to justice and increasing diversity are not solely the responsibility of licensees, but of society as a whole. KCBA’s proposal is that these functions be moved outside of the WSBA and into judicial branch commissions funded by legislative appropriation, much the same way as existing entities such as the Gender and Justice Commission are organized, with appointed oversight boards. This would protect these functions from potential U.S. Supreme Court-ordered changes.
Finally, KCBA recommends that the remaining non-regulatory functions of WSBA, including sections, publications and judicial evaluations, remain with a newly reconstituted WSBA made up of members who voluntarily choose to join, independent of court oversight and governed by an independent, elected body of lawyers. Such an entity would more clearly be a professional society advancing the needs of the profession.
The letter ends by noting that “the Washington Supreme Court has the ability to create a nationally-recognized best practices model for the regulation of the practice of law and the administration of justice — just as we did when we innovatively launched programs here such as the Access to Justice Board. We call on the Court to resist the status quo of a single mandatory bar structure and instead adopt a bold, forward-thinking vision that protects those programs in which we all believe so strongly.”
The Court is expected to consider KCBA’s letter and its own work group’s report at a meeting in early September. Look for further updates in future issues of the KCBA Bar Bulletin. A copy of KCBA’s letter is online at www.kcba.org/publicpolicy.
Andrew Prazuch is KCBA’s executive director. He can be reached by email (firstname.lastname@example.org) or phone (206-267-7061).